IN THE CASE OF: BOARD DATE: 27 September 2023 DOCKET NUMBER: AR20230002990 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge, and his separation code be changed to reflect hardship. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Character reference letters (6) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), Section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states his mother and sister were about to be homeless so, he went to his First Sergeant (1SG) and requested a hardship discharge. His 1SG advised him that there were only two ways to get discharged, either leave in an absent without leave (AWOL) status or wait until he completed his contractual agreement. His mother and sister needed him, so he went AWOL. He was also advised that he could get out in six months after he turned himself in and returned to duty. 3. Following a 4 month period of honorable service in the Army National Guard, the applicant enlisted in the Regular Army on 7 October 1997 [his DD Form 214 shows 5 May 1997]. Upon completion of initial entry training, he was assigned to a unit at Fort Hood, TX. 4. Changes in the applicant's duty status were reported as follows on: * 22 September 1998 - from Present for Duty (PDY) to Absent Without Leave (AWOL) * 22 October 1998 - from AWOL to Dropped from Rolls (DFR) * 26 December 1998 - from DFR to Returned to Military Control 5. A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant on 31 December 1998, for violation of the Uniform Code of Military Justice (UCMJ). Specifically, for being AWOL from on or about 22 September 1998 until on or about 26 December 1998. His immediate commander recommended trial by special court-martial. 6. On 31 December 1998, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. He consulted with legal counsel and was advised of the basis for the trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him. He elected not to submit statements in his own behalf and declined to undergo a physical evaluation prior to separation. 7. His immediate commander supported the Chapter 10 request, with a service characterization of UOTHC. 8. On 20 April 1999, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial, with his service characterized as UOTHC. He further directed the applicant be reduced to the lowest enlisted grade. 9. Orders and the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) confirm he was discharged on 7 May 1999 in the grade of E-1, under the provisions of Army Regulation 635-200, Chapter 10. The narrative reason for his separation was "In Lieu of Trial by Court-Martial" with Separation Code "KFS" and Reentry Code 3. He was credited with completing 1 year, 7 months, and 28 days of net active service this period. He had time lost from 22 September 1998 until 25 December 1998. He did not complete his first full term of service. 10. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. A characterization of UOTHC is authorized and normally considered appropriate. 11. The applicant provides six character reference letters:. a. The applicant's mother rendered a letter wherein she explained a drastic change in the family's circumstances in 1998 when her husband had a run-in with the law and she "freaked out." Once the applicant became aware of the situation, he came home to get a handle on the situation. After determining the extent of the trauma she had experienced, the applicant returned to duty and explained it was necessary for him to return home to take care of his mother and sister. He returned home to assist her in her husband's absence, and she is extremely grateful he did. b. The applicant's father rendered a letter wherein he explained he was accused of raping an 18-year old girl in 1998 and a warrant was issued for his arrest. He went to Arizona and turned himself in to fight the charges against him. He spent approximately 90 days incarcerated in a county jail and was released on his own recognizance to await trial. He accepted a plea bargain and was incarcerated for one year. During that time, there was no income for his wife and daughter, so the applicant went home to take care of them in his absence. c. The Senior Executive Pastor and founder of a church stated he is honored to speak on the applicant's behalf. He met him in 2019 when they worked together and eventually became good friends. The applicant has always impressed him with his professionalism, dedication to family, leadership in the community, and professional character. It has been his great pleasure to know and work with the applicant and he confidently recommends upgrading the applicant's discharge. d. A member of the board of the applicant's church stated he met the applicant in 2019. Having served in the Army himself, they had an immediate connection. They have become friends and he has always enjoyed time spent with the applicant and his family. The applicant has always impressed him with his professionalism, dedication to family, leadership in the community, and his personal and professional character. It has been his great pleasure to know and work with the applicant and he confidently recommends upgrading the applicant's discharge. e. The President of the applicant's employer stated he is an exemplary employee who is the first to arrive each morning. He always goes above and beyond and performs all assigned tasks flawlessly and in a timely manner. f. A former U.S. Army Non-Commissioned Officer, the founder and Executive Director of a Veteran based peer support program and local business owner, stated he met the applicant at their local church, and they became close friends. He has observed the applicant's professional manner, unwavering dedication to his family, leadership in the community, and his personal and professional character. It has been his great pleasure to know and work with the applicant and he confidently recommends upgrading the applicant's discharge. 12. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. ? BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition and available military records, the Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The Board agreed the applicant’s separation code was not in error or unjust. In addition, the Board considered the applicant’s character letters of support attesting to his honorable conduct and his post service achievements. The Board applauds the applicant’s commitment to his family and accomplishments. However, the Board determined the applicant was apprehended by civilian authorities in Phoenix, Arizona. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. The Board denied relief. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: Except for the correction addressed in Administrative Note(s) below, the Board found the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTES: A review of the applicant’s records shows he is authorized additional awards not annotated on his DD Form 214 for the period ending 20 April 1999. As a result, amend his DD Form 214 by adding: * National Defense Service Medal * Army Service Ribbon REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an UOTHC discharge. b. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. When a Soldier was to be discharged UOTHC, the separation authority would direct an immediate reduction to the lowest enlisted grade. 3. Army Regulation 635-5-1 (Separation Program Designator Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. It states that the separation code "KFS" is an appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 10, by reason of In Lieu of Trial by Court-Martial. Reentry Code 4 is the appropriate corresponding reentry eligibility code. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NR) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230002990 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1